Albers v. Commissioner

WILLIAM H. ALBERS, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Albers v. Commissioner Docket No. 74759. United States Board of Tax Appeals 33 B.T.A. 373; 1935 BTA LEXIS 757; November 6, 1935, Promulgated *757 1. Capital gains should be included in other income in determining the amount of net income for the purpose of applying the 15 percent limitation on charitable contributions prescribed in section 23(n) of the Revenue Act of 1928. Helvering v. Bliss,293 U.S. 144. 2. Where there was a bona fide sale by the petitioner to a corporation which he controlled of certain stock at the fair market price thereof on the date of the sale, which price was less than the cost of the stock to the petitioner, he is entitled to deduct the difference as a loss sustained by him. 3. Where a corporation which he controlled loaned a block of stock to the petitioner on the understanding that it would be returned as soon as the loan had served its purpose, and the stock was pledged as collateral for the petitioner's personal trading account, the sale thereof in the open market for the petitioner's account constituted a conversion and the petitioner's liability to the corporation is measured by the value of the stock at the time it was converted to his use. Since the petitioner was merely a gratuitous bailee and did not owe the corporation any more than he received when the stock*758 was sold at its fair market price, no deductible loss was sustained by him on account of the sale. C. J. McGuire, Esq., W. C. Magathan, Esq., and S. Lester McCormick, Esq., for the petitioner. F. D. Strader, Esq., and F. S. Gettle, Esq., for the respondent. MATTHEWS *373 This proceeding is for the redetermination of a deficiency determined against the petitioner for the year 1930 in the sum of $150,469.35. The petitioner assigns as error the action of the respondent in disallowing deductions claimed by the petitioner as follows: (1) A loss of $502,638.44 on the sale of 18,652 shares of stock of the Kroger Grocery & Baking Co. (2) A loss of $668,234 on the sale of 11,800 shares of stock of the A. Nash Co. (3) Contributions in the sum of $32,867.60, which are alleged to come within the 15 percent limitation prescribed by section 23(n) of the Revenue Act of 1928. The parties have entered into a stipulation of facts and additional evidence was introduced at the hearing, from which we make the following findings. FINDINGS OF FACT. Petitioner is an individual, residing in Cincinnati, Ohio. During 1928 and until April 1, 1930, petitioner*759 was president of the Kroger Grocery & Baking Co. and thereafter he was chairman *374 of the board of directors of the A. Nash Co., engaged in the tailoring business. Prior to 1930 petitioner acquired an option to purchase more than 130,000 shares of the common stock of the Kroger Grocery & Baking Co. Upon the advice of counsel petitioner organized a corporation under the name of Alberly, Inc., and exchanged this option for its entire issue of capital stock. During the taxable year petitioner owned 6,400 out of 8,000 class A shares and all of the 2,000 class B shares of stock of Alberly, Inc., the remaining class A shares being owned by his wife and his brother. The option transferred to it by the petitioner was sold by Alberly, Inc., to Lehman Brothers, an investment banking house in New York City, for more than $900,000 and the proceeds of the sale were invested in real estate and securities. Among the securities acquired by Alberly, Inc., in 1928 were 18,652 shares of stock of the Kroger Grocery & Baking Co., which shares were loaned to the petitioner in accordance with a resolution of the board of directors of Alberly, Inc., dated October 27, 1928, upon condition that*760 the stock would be returned to the safe deposit box of the company as soon as the loan had served its purpose. Petitioner carried a trading account with Lehman Brothers and put up these 18,652 shares as collateral to secure his account. Early in 1930 petitioner was heavily indebted to Lehman Brothers and continual pressure was being placed on him to sell the stock pledged as security. This firm had already sold some of the collateral which had been deposited with them and they were insisting that petitioner liquidate the remainder, including the borrowed Kroger Grocery & Baking Co. stock. On April 15, 1930, when the market price of the Kroger stock was approximately $40 pet share, petitioner decided to apply the 18,652 shares which he had borrowed from Alberly, Inc., to the payment of his personal obligation to Lehman Brothers. On May 2, 1930, Lehman Brothers sold these 18,652 shares in the open market for the petitioner's personal account for the sum of $602,646.12. In April 1930 petitioner had a credit of more than $300,000 on the books of Alberly, Inc., and had other assets which would have enabled him to pay the cost of this stock to Alberly, Inc. After the sale of the*761 stock on May 2, 1930, an entry was made on the books of Alberly, Inc., as of April 15, 1930, transferring to the petitioner the 18,652 shares of stock of the Kroger Grocery & Baking Co. at a price of $1,105,284.56, which was the original cost of the stock to Alberly, Inc., and which amount was charged to the petitioner's account on the books of Alberly, Inc. No corporate action was taken by Alberly, Inc., with respect to a sale of the stock to the petitioner. *375 In his income tax return for 1930 petitioner claimed a loss on the sale of 18,652 shares of stock of the Kroger Grocery & Baking Co. in the amount of $502,638.44, which was wholly disallowed by the respondent. In 1929 petitioner purchased on the open market 11,800 shares of stock of the A. Nash Co. at a cost of $1,612,234. This stock was sold by him to Alberly, Inc., under date of December 31, 1930, at a price of $80 per share, which was the fair market price on that date, or a total sale price of $944,000, the petitioner receiving a credit on the books of Alberly, Inc., of $438,245 and notes of that corporation amounting to $505,755. Between April 15 and December 31, 1930, the petitioner's debit balance had*762 been reduced by other credits so that this credit of $438,245 was more than sufficient to wipe out his then outstanding indebtedness to the corporation. Purchase of the stock by Alberly, Inc., was authorized by a resolution passed by its board of directors at a meeting held on December 26, 1930, and the corporation has continued to own the stock. Petitioner had previously received loans from three Cincinnati banks totaling $505,000 and this stock had been deposited as collateral for the loans. When the stock was sold by the petitioner to Alberly, inc., the notes of the corporation were substituted for the petitioner's personal notes evidencing this indebtedness. Subsequently, one B. H. Kroger advanced $500,000 to pay off the banks, taking the notes of the corporation with the stock of the A. Nash Co. as security, and this stock has remained in the possession of Kroger as collateral against his loan of $500,000 to Alberly, Inc. Petitioner claimed a loss of $668,234 on the sale of this stock, which the respondent disallowed. Petitioner's reasons for selling the stock of the A. Nash Co.were to liquidate his indebtedness to Alberly, Inc., and to reduce his personal income tax for*763 1930. During the taxable year 1930 petitioner made contributions in the total sum of $60,473.35 and has claimed a deduction in the amount of $32,837.60 as being within the 15 percent limit provided by section 23(n) of the Revenue Act of 1928. The respondent refused to allow any deduction on account of these contributions, on the ground that petitioner had no net income subject to the ordinary normal and surtax rates of tax, it being the respondent's position that capital gains should not be included in other income in determining the amount of net income to which the 15 percent limitation prescribed in section 23(n) should be applied. OPINION. MATTHEWS: The issues presented herein will be discussed in the inverse order in which they are set out above. *376 The respondent's disallowance of the deduction claimed by the petitioner on account of contributions made by him in the taxable year was predicated on the premise that such deduction should be limited to 15 percent of the ordinary net income, excluding capital net gains. This question of law has been decided adversely to the respondent's contention by the Supreme Court of the United States in *764 , affirming , and we accordingly hold in favor of the petitioner on this issue. With respect to the sale by the petitioner to Alberly, Inc., of 11,800 shares of stock of the A. Nash Co., the respondent admits the apparent regularity thereof but argues that the sale was not a bona fide transaction made at arm's length. The petitioner was the president of Alberly, Inc., and owned 84 percent of its entire capital stock, the balance being owned by his wife and his brother. Petitioner frankly testified at the hearing that one of his motives for making this sale was to enable him to take a deduction from income for 1930. But the fact that the stock was transferred to the corporation which the petitioner controlled for the avowed purpose of reducing his income tax did not invalidate the transaction when the price received was equal to what could have been obtained from others. . The petitioner herein is claiming a loss on the sale of stock of the A. Nash Co. in the amount of $668,234, representing the difference between the cost to him in 1929, *765 when he bought the stock on the open market for $1,612,234, and the total sale price of $994,000. It is important to note that this stock was sold by the petitioner on December 31, 1930, at $80 per share, which price represented its fair market price on that date. The petitioner completely dispossessed himself of the stock. He did not receive any cash, but he did receive full and adequate consideration. An entry was made on the books of Alberly, Inc., crediting his account in the amount of $438,245, which wiped out petitioner's outstanding indebtedness to the corporation, and notes were executed by the corporation for the balance of the purchase price, which notes were given to the petitioner and substituted for his personal notes to secure loans previously obtained by him in the total amount of $505,000. The corporation's purchase of the stock was authorized by formal directorate action. The corporation has continued to own the stock and has pledged it as collateral against a loan to the corporation. Under these circumstances we hold that the sale was bona fide and, inasmuch as the price received by the petitioner was neither more nor less than the fair market value of the*766 stock at the time, we are of the opinion that the petitioner is entitled to the deduction claimed by him on this transaction. *377 A different situation is presented with respect to the sale of 18,652 shares of stock of the Kroger Grocery & Baking Co. These shares had been purchased by Alberly, Inc., in 1928 at a cost of $1,105,284.56, and since October 27, 1928, they had been held as collateral to secure the petitioner's personal trading account with Lehman Brothers. On May 2, 1930, Lehman Brothers sold these shares on the open market for the petitioner's account for $602,646.12. Petitioner maintains that he sustained a loss of $502,638.44, representing the difference between the sale price of $602,646.12 and $1,105,284.56, which was the cost of the stock to Alberly, Inc., it being the petitioner's position that he took over the stock on April 15, 1930, at the same figure at which the stock had been purchased by Alberly, Inc. In the alternative, it is claimed by the petitioner that he is entitled to a deduction of $143,433.88, representing the difference between the price at which the stock was sold and the fair market value thereof on April 15, 1930, which was $746,080. *767 We are of the opinion that the petitioner is not entitled to any deduction on account of this transaction and we sustain the respondent's action on this point. There is no evidence of any sale of this block of the Kroger stock to the petitioner. This stock was among the securities purchased by Alberly, Inc., in 1928, shortly after this company was organized by the petitioner, and was promptly loaned to the petitioner as "a considerable favor to him", on condition that the stock would be returned "as soon as the loan had served its purpose." The petitioner pledged the stock as collateral security for his personal trading account. In April 1930, after the market had declined sharply and he was being pressed to liquidate his account with Lehman Brothers, the petitioner told his secretary that he would have to "take over" the stock which was owned by Alberly, Inc., in order to settle the claim of Lehman Brothers against him personally. The petitioner has taken April 15, 1930, as the date he made the decision to acquire this stock, and on that date the fair market value of the Kroger stock was approximately $40 per share. The petitioner testified that it was because he did not wish*768 Alberly, Inc., to sustain a loss that he determined to pay $60 per share for the Kroger stock which he had borrowed from Alberly, Inc. It was admitted by the petitioner that he was under no obligation to buy this stock and that it was merely a personal feeling that he should assume the loss occasioned by the sale of this stock on the open market under date of May 2, 1930, when it brought only approximately $32.50 per share. The stock was never transferred to the petitioner on the books of the Kroger Grocery & Baking Co. No entry was made on the books of Alberly, Inc., with respect to the price at which this stock was taken over by petitioner until after the stock was sold by the brokers on *378 May 2, 1930. The entry was made as of April 15, 1930, and the price was listed at $60, though the stock was worth only $40 on that date. The petitioner testified that on any date from October 27, 1928, when he borrowed the stock from Alberly, Inc., until April 15, 1930, when he decided to take it over, he could have had appropriate entries made on the books to show that he was the owner of the stock. When the stock was loaned to the petitioner he became a gratuitous bailee and his*769 only agreement was to return the stock. The sale of the stock for his personal account amounted to a conversion and the measure of damages therefor is the value of the stock at the time the conversion took place. 6 C.J. 1164; ; . The stock having been sold in the open market on May 2, 1930, for $602,646.12, which amount represented its fair market value on that date, the petitioner was under obligation to turn over this sum to Alberly, Inc. There is nothing to show that Alberly, Inc., was entitled to a greater amount. Under these circumstances, we hold that the petitioner never purchased the Kroger stock from Alberly, Inc., and, since he did not owe the corporation any more than he received when the stock was sold, no loss was sustained by the petitioner on account of this sale. Cf. ; and . Judgment will be entered under Rule 50.